Why you should care

U.S. Supreme Court Justice Clarence Thomas takes a lot of heat over his, shall we say, lackluster participation in the court’s oral arguments. Thomas will go years without posing a question to the lawyers pleading their case before him, and court watchers have grown accustomed to the sight of him reclining in his leather chair and staring at the ceiling, seemingly oblivious to the proceedings.

On the scale of historical disengagement on America’s high court, however, Thomas’ transgressions are pretty minor. The court’s history is riddled with undistinguished jurists who never approached Thomas’ hundreds of opinions and quarter century on the bench. Who can’t forget John Rutledge, the first Johnny R. to be named chief justice, who, just 16 days after President George Washington named him to the court in 1795, publicly criticized a key treaty supported by both Washington and the Senate, leading to his prompt dismissal?

“To be insignificant for one or two years [as a justice], however, is child’s play,” wrote University of Chicago law professor David Currie, but “to maintain a profile of insignificance over a period of a decade or more is an accomplishment of high order.” Currie made that observation during a lighthearted debate with fellow professor Frank Easterbrook (now a judge on the U.S. Court of Appeals for the Seventh Circuit) that played out in the pages of the University of Chicago Law Review in 1983. In both scholars’ search for the individual who deserved the title “Most Insignificant Justice,” one name surfaced above all others: Gabriel Duvall.

In constitutional cases, Duvall issued but one opinion in a quarter century on the bench.

“[I]mpartial examination of Duvall’s performance reveals to even the uninitiated observer,” wrote Currie, “that he achieved an enviable standard of insignificance against which all other justices must be measured.” In his 24 years on the court, Duvall, nominated by President James Madison in 1811, penned just 18 opinions in the 962 cases before him. In constitutional cases, Duvall issued but one opinion in a quarter century on the bench — delivered in just three words: “Duvall, Justice, dissented.”

Duvall’s path to the bench was equally unremarkable. Raised on his family’s plantation in Prince George’s County, Maryland, Duvall served without distinction in the Revolutionary War. After the war, the young lawyer was elected to Maryland’s House of Delegates and was subsequently chosen to represent his state at the historic Constitutional Convention in 1787. Naturally, he declined — apparently for personal reasons. After two years in Congress, a stint as a state court judge and serving as a comptroller to the U.S. Treasury under Presidents Jefferson and Madison, he was appointed to the court — but only after a slew of other nominees unexpectedly fell through.

Gabriel Duvall

Source CC

Duvall, nearly 60, was no spring chicken when he finally landed on the court. And if he garnered any attention during his years there, it mostly pertained to his deteriorating health, his deafness slowly limiting his ability to participate in oral arguments. But, throughout his years of service, he was a loyal vote for the iconic Chief Justice John Marshall and his view of strong federal power. During this period, the chief justice authored most of the court’s opinions — one reason the court is sometimes referred to as “John Marshall and the Six Dwarfs.” And no doubt another reason for Duvall’s meek output — though hardly the only one — “justices who sat after the Civil War have been handicapped in the quest for True Insignificance by law clerks, secretarial staff, typewriters,” Easterbrook wrote, reminding us that over time, justices began hearing a higher volume of cases and producing more and longer opinions.

Through the years, historians have come to appreciate that Marshall’s court was not merely a one-man show, and many of the court’s opinions, though signed by Marshall, were the product of significant input from the other justices, including Duvall, who all lived and boarded together while they were in session in Washington. And Duvall did, in fact, distinguish himself in at least one notable case, Mima Queen and Child v. Hepburn (1813), when he alone dissented from Marshall on whether a slave could present hearsay evidence that her mother was free at the time of her birth.

“It will be universally admitted that the right to freedom is more important than the right to property,” Duvall wrote, arguing the evidence should be allowed, and differentiating the slave’s claim from similar cases involving the disposition of land. “And people of color from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection.”

Just 39 words puncturing years of jurisprudential silence, but you have to hand it to Justice Duvall: He made them count.